Jammu & Kashmir : Under The Shadow Of Article 370

This article was written by Vidhatri Bharti, a student of Army Institute Of Law Mohali.

“You Want That India Should Defend Kashmir, India Should Develop Kashmir, And Kashmiris Should Have Equal Rights As The Citizens Of India, But You Don’t Want India And Any Citizen Of India To Have Any Rights In Kashmir. I Cannot Betray The Interest Of My Country.”

– B.R. Ambedkar to Sheikh Abdullah on article 370

The state of Jammu and Kashmir holds a peculiar position under the Indian Constitution. Although it forms a part of the territory of India under article 1 of the constitution, it occupies a special position under article 370, which has been maintained till date. However, the maintenance of this special position is debatable due to the complex nature of the instrument of accession and the political frame of things both in the past during independence and even today.

Brief history and background

Prior to independence, Jammu & Kashmir was a princely state ruled by a hereditary Maharaja. At the time of independence in 1947 India was facing the challenge of merging princely states into India. Like all other 562 states J&K also had the option of merging with dominion of Pakistan, the dominion of India or claiming itself as an independent state.

In the meanwhile on 26th October 1947, the state of J&K was attacked by Azad Kashmir forces with the help of Pakistan, confronted with the chances of losing Kashmir Maharaja Hari Singh was obliged to seek the help of India, for which he had to execute an instrument of Accession. By way of this accession the dominion of India acquired jurisdiction over the state with respect to the subjects of Defence, Communication and External Affairs, however, the provisions of the Indian Constitution were not extended to Jammu & Kashmir.

Later while other states signed an agreement for merger with the union of India, the state of Jammu & Kashmir was not ripe enough for integration which was the main reason for Article 370. However, Dr. B.R. Ambedkar, the father of the Indian constitution was against the idea of Article 370 and refused to draft it saying that he was not a ‘traitor’ and Pandit Nehru, the then prime minister and Sheikh Abdullah who was then the sadar-i-riyasat and Nehru’s friend convinced Ambedkar on the existence of Article 370. Finally, this article was drafted by Gopalswami Ayyagnar.

Although Sheikh Abdullah did not want the provisions of article 370 to be temporary rather he wanted the state of J&K to have ‘Iron Clad Autonomy’ but India did not agree to it and kept the provision temporary in hope of integrating Kashmir with India with the passage of time.

Ideals Embodied In The Article And Major Provisions

Article 370 is enshrined under part XXI of the Indian Constitution that deals with ‘Temporary, Transitional and Special Provisions’. The article gives a special status to the state of Jammu & Kashmir except for matters relating to communication, defence and external affairs.

The state not only has its own constitution but also a state flag, and anthem. The residents of Jammu & Kashmir have dual citizenship as they are citizens of the state first and then Indians. Another feature of the differential functioning of the state is that the legislative assembly of the State lives up to the period of 6 years unlike 5 years in Indian states, although the constituent assembly no more exists.

Clause 1(b) of article 370 gives the parliament the power to make laws only in the matters specified in the instrument of accession and matters with the concurrence of the state.

Clause 1(c) provides for application of article 1 and 370 of the Indian constitution in relation to the state of Jammu & Kashmir.

The most debated topic is clause (3) of the article, it provides that : Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

The constituent assembly of Jammu & Kashmir has been dissolved and thus the abrogation of this article has been in question since long.

Whether An Impediment Or A Catalyst For Growth

The state of J&K though has managed to secure the biodiversity and ecological balance and the people enjoy many autonomous benefits, however, in view of many experts the autonomous nature of the state also affects the people in an adverse manner. Certain pros and cons of Article 370 have been discussed below-

Pros of Application of Article 370 :

• Only the permanent residents of the state of J&K can own land there, due to which ecological diversity can be preserved
• Government jobs in the state are available only to the residents of Jammu & Kashmir
• Population of the state is less and it has contained population blast

Cons of Article 370 :

• The state lacks in providing basic amenities of water, electricity and internet facilities to the residents
• High terrorism rates
• No industrial growth due to which low levels of employment
• The state is a victim to politics of religion as only a Muslim candidate can be the CM of the state.

Conclusion

The debate regarding the status quo of J&K and article 370 being a bridge or a barrier has been drawn from the days of independence and seems interminable. In the past years there have also been talks to abrogate the article, but nothing suchlike has taken place.

It is an accepted fact that kashmiri’s have been alienated not by way of any intentional steps by the government of India but by way of its autonomous status. Article 370 is a symbol of autonomy for the people of Kashmir and its abrogation is not practically possible due to the constitutional barrier. Moreover, this debate is not unilateral in character because PoK and areas leased to china make the debate of a grave nature having multiple facets.

Also, the people of Kashmir have not benefited from this special status rather have been victims to non-opportunities in terms of industrialisation, entrepreneurship etc.

It can be concluded that the Kashmir issue was not as critical as it was forced into being due to political ferocity at the time of independence. Thus, there arises a need for clarity on the issue of Kashmir but if only an abrogation of this article takes place in near future it should be only after taking the people of Kashmir into confidence as the article owing to the current political and international circumstances has been reduced to the status of an empty shell.

The people of Kashmir remain to be a part of ‘We The People Of India’ in the preamble of the Indian constitution and India should continue to preserve its relation with Jammu & Kashmir as its own.

Bibliography

• Article 370: A Constitutional History Of Jammu& Kashmir By A.G. Noorani
• Status Of Jammu And Kashmir Sociopolitical And Legal Perspectives by Siddharth Badkul
• Article 370: Constitutional Obligation and Compulsion by Prof. (Dr.) Pradeep Kulshrestha
• P. Jain, Indian Constitutional Law,7th ed. 2014
• The Truth about Article 370 by Arvind Lavakare
• Commentary On The Constitution Of India by D.D. Basu